Town of Davis v. Davis
| Decision Date | 06 April 1895 |
| Citation | 21 S.E. 906,40 W.Va. 464 |
| Parties | TOWN OF DAVIS v. DAVIS. |
| Court | West Virginia Supreme Court |
Submitted January 25, 1895
Error to circuit court, Tucker county.
Proceeding by the town of Davis against S. T. Davis to abate a nuisance. On certiorari to the circuit court, the judgment of the town council was affirmed, and said Davis brings error. Affirmed.
A. M Cunningham, for plaintiff in error.
C. W Dailey and C. O. Strieby, for defendant in error.
HOLT, P.
This was a proceeding on the part of the incorporated town of Davis against S. T. Davis, to have declared to be and abated as a nuisance, a steam riding gallery, commonly called a "merry-go-round," operated by defendant Davis in the town, on lot No. 73. Such proceedings were had that the town council, by judgment rendered on the 10th day of August 1894, declared the same to be a nuisance, and ordered it to be abated,--to be stopped, we infer. On the 17th day of August, S. T. Davis presented to the circuit judge, in vacation, his petition for a writ of certiorari, but on mature consideration it was refused, and to such refusal this writ of error was granted. Defendant Davis appeared at the time and place mentioned in the process before the members of the town council, and moved to quash and dismiss the summons as unauthorized by law, and as otherwise faulty and defective.
1. Was such motion improperly overruled? Section 28 of chapter 47 (see Code 1891, p. 426), which defines the powers and duties of the council, and among them the power to prevent injury and annoyance to the public or to individuals, and to abate, or cause to be abated, anything which, in the opinion of a majority of the whole council, shall be a nuisance, does not prescribe the forms and methods of procedure. Therefore they are allowed a wide discretion, within the limit of reasonable fairness. In this case there was a petition and information, signed by 50 residents of the town, supported by two supplementary affidavits, suggesting the location of the riding gallery, the name of defendant as the owner operating it, and praying that he might be summoned to show cause why the same should not be declared to be a nuisance and abated, being complained of as both a public and private nuisance. Upon this the summons in the nature of a scire facias, or rule to show cause, was issued. It gives the defendant notice of the injury and annoyance suggested and complained of, commanding the officer to summon him to appear at a certain time and place I know of no law requiring it to be signed by the members of the council. In view of the purpose the summons and forms of procedure are intended to accomplish and subserve, I can call to mind no more short, simple, and efficient form than this, to give the party written notice of the thing complained of, the relief asked, and of the time, place, and tribunal when and where he is to appear and show cause why the same should not be granted. As to the authority for it, it finds justification in the forms of the various writs of scire facias and rules to show cause which have been in use for the like purpose time out of mind. They were used before the ordinary distinctive forms of common-law actions came into existence, and they still survive as efficient and simple methods of notice and procedure in daily use.
2. But it is said that it is a writ, and void because it does not run in the name of the state, as required by section 8 of article 2 of the constitution. See Code 1891, p. 21. I do not regard it as a writ or process of any tribunal acting as a court, but simply a notice, in the name and on the behalf of the town of Davis, that defendant should appear before the council at the time and place designated, and show cause, if any he could, why they should not, in the exercise of their police power, abate his riding gallery, as a nuisance, --a method deemed expeditious enough to meet the exigencies of this particular case, and certainly proper in itself, and fair to the defendant; for it not only gave him an opportunity to show cause, but to remove or stop it himself if he saw fit. The defendant demanded, as matter of right, a continuance of the cause for seven days, as allowed by section 58 of chapter 50 of the Code in an ordinary civil action before a justice. This was refused, but the further hearing was deferred for 24 hours. Such refusal was not error, for three reasons: First. It was not a cause, within the meaning of that section. Nor was the mayor acting as a justice of the peace to try a case between parties, but as the chief executive officer of the town, according to section 39 of chapter 47 of the Code, which makes it his especial duty to see that the peace and good order of the town are preserved, and that persons and property therein are protected. Therefore, when 50 residents lodged with him their sworn information and complaint of a nuisance, and asked its abatement, and that defendant might be cited before the council to show cause, if any he had, against it, the mayor caused such citation to be issued and served, in the name and on the behalf of the municipality, for a hearing of the matter before the common council, having first fixed the time and place. Second. If, within the meaning of the section, defendant made no affidavit, and in such case the statute requires it. Third. And when the examination took place, on the next day, defendant appeared with, and examined on his own behalf, some 25 witnesses.
3. Again it is said there was error because the council heard the case when the recorder was absent. Section 27 of chapter 47 says, "The mayor and recorder shall vote as members of the council." But section 24 of chapter 47 says, "A majority of the council shall be necessary to form a quorum for the transaction of business." And the inference is that no greater number is required, unless the law in the given case specially makes the presence of the whole, or such greater number, necessary. I can find no such law. The section relied upon for this contention is section 28, which says the council shall have power to abate, or cause to be abated, anything which, in the opinion of a majority of the whole council, shall be a nuisance. This does not mean that more than a quorum must in such case be present, but that a majority of the whole, including those absent as well as those present, must concur in such opinion. Here five out of the whole seven concurred in the opinion to abate.
4. The defendant urges that the remedy by injunction should have been resorted to. In most cases,--in many cases, rather,--it is hard to conceive of a judicial remedy more full and complete, more flexible in adaptability to the peculiar exigencies and ever-varying requirements of the cases, or, what may be more to the point, more simply efficient and speedy; so much so that it has become a common judicial remedy in a common criminal nuisance, where abatement is necessary, and in a large class of cases has well-nigh superseded actions at law, except, perhaps, where mandamus is added to what we would call common-law suits, as an ancillary remedy, or mode of carrying a specific judgment into effect. But I take it for granted that some sort of a nuisance, great or small,--and many of a petty character,--arises almost every day in cities and towns. It would be intolerable to have to apply to a circuit court, in such cases; and it would seem not to be necessary under this statute, in most cases, where the party is properly heard before he is condemned, though it is easy to imagine grave and perplexing questions where such resort to the ordinary courts would be prudent and discreet, and especially safe, on the part of the common council. Long experience, the great practical test of general fitness and convenience in such matters, has shown that self-governing municipalities must have large power over such affairs, for the prevention of injury and annoyance to individuals, and the public from things dangerous, offensive, or unwholesome; in other words, to see that each one has the full enjoyment of his rights of life, liberty, and property, and therefore that each one shall so use such rights of his own as not to invade or injure those of another. This is the main purpose of their creation, and the chief function in their existence; so that their fair and honest efforts in that behalf should be liberally construed, and steadily upheld. But, on the other hand, it would be intolerable for such local municipal authorities of a town to meet in private, and declare a particular thing to be a nuisance, without giving the party an opportunity to be heard and show cause against it. See Yates v. Milwaukee, 10 Wall. 498. Hence what seems to me to be the fair and prudent course was pursued by the mayor and council of the town of Davis in this instance.
Now the question arises, and has been discussed, what is the nature of such proceeding? It is plainly judicial in its character. I hardly see how it can be regarded otherwise. It is true that it is in the exercise of the general police power delegated by the legislature. But is the judicial ascertainment of a fact in a proceeding in the concrete case against a particular person and thing, after due notice given, in order to ascertain the character or status of the thing as a nuisance, followed by execution of the judgment any the less a judicial proceeding, in...
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